STATE OF OHIO, Plaintiff-Appellee, v. SHAWN MARTIN THOMAS, Defendant-Appellant.
Case No. 17 BE 0014
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY
July 2, 2018
2018-Ohio-2815
Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 16 CR 210
JUDGMENT: Reversed and Remanded
Atty. J. Flanagan, Chief Assistant Prosecutor, Courthouse Annex 1, 147-A West Main Street, St. Clairsville, Ohio 43950 No Brief Filed for Plaintiff-Appellee and
Atty. Edward Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown, Ohio 44503, for Appellant-Defendant.
Dated: July 2, 2018
{1} Defendant-Appellant Shawn Martin Thomas appeals the judgment of the Belmont County Common Pleas Court upon his guilty plea to three counts of unlawful sexual conduct with a minor. Appellant argues the plea was not knowing, intelligent, or voluntary because the trial court failed to explain that he was waiving the right to a jury trial where the court merely stated he was waiving the right to a “speedy and public trial” without mentioning a jury at any point in the colloquy. As strict compliance with the plea advisements on constitutional rights is required, Appellant‘s argument has merit. In accordance, this court concludes the trial court‘s judgment is reversed, and the case is remanded for further proceedings.
STATEMENT OF THE CASE
{2} On August 3, 2016, Appellant was indicted for attempted rape with the allegation he purposely compelled A.M. to submit to sexual conduct by force or threat of force. See
{3} Pursuant to the agreement, the state amended the second-degree felony attempted rape count in the indictment to fourth-degree felony unlawful sexual conduct with a minor. The agreement called for Appellant to plead guilty to this amended count plus two other fourth-degree felony counts of unlawful sexual conduct with a minor as
{4} At the February 27, 2017 sentencing, Appellant was offered his right to allocution, but he declined to speak. In accordance with the plea agreement, the prosecution took no position on sentencing, and the defense asked for concurrent sentences. The court reviewed information about the offense from the presentence investigation report and the victim impact statement. The court spoke of the purposes and principles of sentencing under
{5} Appellant was sentenced to the maximum of eighteen months on each count to run consecutively. The court imposed a mandatory term of five years of post-release control as required by
{6} The court labeled Appellant a Tier I sex offender and ordered him to register with the sheriff annually for fifteen years. The statutory sex offender registration notice was signed at hearing. Appellant‘s status was marked as a Tier I sex offender, and the notice explained a Tier I sex offender was required to register for 15 years with annual in-person verification. Appellant was given 89 days of jail time credit. The February 27, 2017 sentencing entry reiterated the court‘s findings.
{7} A timely notice of appeal was filed, and a new attorney was appointed for the appeal. On September 28, 2017, counsel filed a motion to withdraw and an Anders brief setting forth a proposed assignment of error on consecutive sentencing but concluding the trial court‘s findings were sufficient. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29 (“a word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld“). This court appointed new counsel under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On April 4, 2018, Appellant‘s new counsel filed a brief challenging the guilty plea.
ASSIGNMENT OF ERROR: PLEA COLLOQUY ON JURY TRIAL
{8} Appellant‘s sole assignment of error provides:
“The trial court did not comply with
{9} A guilty plea is governed by
Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{10} Although the trial court must strictly comply with this portion of the rule, the failure to recite the exact language of the rule will not invalidate a plea if the record demonstrates the court actually explained each constitutional right in a reasonably intelligible manner. Barker, 129 Ohio St.3d 472 at ¶ 14-15, 20. Based on this premise, the Barker Court held the trial court reasonably conveyed to the defendant that he was waiving the right to have compulsory process for obtaining witnesses in his favor where the court advised him of the right to “call witnesses to speak on your behalf” (and the plea agreement spoke of the defendant‘s ability to use the power of the court to call witnesses to testify).
{11} As for reviewing a plea agreement, the trial court has the duty to impart knowledge of the constitutional rights and “cannot simply rely on other sources to convey these rights to the defendant.” Veney, 120 Ohio St.3d 176 at ¶ 29 (invalidating plea where court failed to orally inform defendant of his constitutional right to require the
{12} Here, the court asked if Appellant understood he was waiving the following rights: “to a speedy and public” trial; to confront witnesses against him; to compulsory service of witnesses in his favor; to require the state to prove his guilt beyond a reasonable doubt; and to not be compelled to testify against himself. (Plea Tr. 6). As Appellant points out, the trial court did not refer to a “jury” trial.
{13} In some cases when a reviewing court is faced with this situation, the court can conclude there was a valid waiver by finding the reference to a jury was orally made when explaining some other aspect of the plea. See, e.g., State v. Ballard, 66 Ohio St.2d 473, 481, 423 N.E.2d 115 (1981); State v. Hayward, 6th Dist. No. WD-17-010, 2017-Ohio-8611, ¶ 8, 12; State v. Smiddy, 2d Dist. No. 2014-CA-148, 2015-Ohio-4200, ¶ 6, 15; State v. Young, 11th Dist. No. 2009-T-0130, 2011-Ohio-4018, ¶ 39-40. As in this case, the trial court in Hayward orally advised the defendant of the right “to a speedy and public trial” but later explained that if he chose not to testify, the court would “instruct the jury” it could not consider this decision. The Sixth District relied on the later reference to a jury in the plea colloquy and the plea agreement in order to uphold the plea. Hayward, 6th Dist. No. WD-17-010.
{14} In Ballard, the trial court advised the pleading defendant of his right to a “fair and impartial” trial. This was an insufficient reference to the right to a jury trial. However, in discussing the right against self-incrimination, the trial court informed the defendant that “neither judge nor jury” could draw any inference if he refused to testify. The defendant said he understood the rights explained to him. The Supreme Court concluded: “These statements and answers, taken together, lead us to the conclusion that the appellant was informed of his right to a trial by jury.” Ballard, 66 Ohio St.2d at 481.
{16} In sum, the trial court failed to advise Appellant of his constitutional right to a jury trial by informing him of “the right to a speedy and public trial” where no reference to a jury was made elsewhere at the plea hearing. Appellant‘s assignment of error is sustained. The judgment of the trial court is reversed, and the case is remanded for further proceedings.
SEXUAL OFFENDER TIERS
{17} Although not raised on appeal, this court is compelled to discuss the following issue with the sex offender tier label: Appellant was told he would be subject to Tier I registration of 10 years; registration for a Tier I sex offender is actually 15 years; but a sex offender convicted of fourth-degree felony unlawful sexual conduct with a minor is subject to a Tier II sex offender label which involves 25 years of registration. At the plea hearing, the trial court asked if Appellant understood he would be “registered as a sex offender, with the appropriate reporting requirements.” (Plea Tr. 9). Appellant said he did and knew he would be required to sign a form in acknowledgement of the requirements. The court did not mention the tier or the duration of registration, but defense counsel voiced, “the prosecutor and I have determined this would be a Tier I Registration, which is once every 180 days for ten years.” (Plea Tr. 10). The written plea agreement likewise stated in the section explaining the potential sentence: “Tier I Registration – every 6 mos. for 10 years.”
{18} Contrary to this statement on the record and in the plea agreement, a person who is a Tier I sex offender is subject to 15 years of registration, and the verification of registration is annual.
{19} Nevertheless, unlawful sexual conduct with a minor in violation of
{20} The only reference to
{21} Rather, a violation of
A violation of section 2907.04 of the Revised Code when the offender is at least four years older than the other person with whom the offender engaged in sexual conduct, or when the offender is less than four years older than the other person with whom the offender engaged in sexual conduct and the offender previously has been convicted of or pleaded
guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the Revised Code or former section 2907.12 of the Revised Code ***.
{22} For the reasons set forth under Appellant‘s sole assignment of error, the trial court‘s judgment is reversed, and the case is remanded for further proceedings.
Waite, J., concurs.
Bartlett, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.